Will the Supreme Court Rule for a Web Designer Who Won’t Work on Same-Sex Weddings?
December 6, 2022
(Deseret News) — The Supreme Court on Monday is hearing arguments in its biggest religion-related case of the current term.
303 Creative v. Elenis features Lorie Smith, a Colorado web designer who, for religious reasons, does not want to build wedding websites for same-sex couples. She filed a lawsuit challenging her state’s anti-discrimination policy, arguing that it violated her free speech and religious freedom rights.
Earlier this year, the Supreme Court agreed to consider the free speech elements of her case and weigh whether Colorado’s efforts to protect the LGBTQ community have interfered with the free speech rights of business owners like Smith.
Legal experts agree that there is much at stake in the case, although they don’t agree on how it should turn out.
Smith’s supporters say a win for her would help all Americans, while others say such an outcome would weaken civil rights protections across the country, as the Deseret News previously reported.
Here’s an overview of what happened during Monday’s oral arguments:
Questions for and comments from Kristen Waggoner, attorney for Lorie Smith
- In her opening remarks, Waggoner argues that Colorado’s policy is forcing Smith to create and share speech that she does not agree with. If it’s allowed to stand, the state could force a Democratic speechwriter to work for a Republican lawmaker and a number of other harmful outcomes, she claims.
- Justice Elena Kagan notes that she has two clerks in her office who are engaged and that she looked at their wedding websites as part of her preparation to hear 303 Creative. Not all websites are unique, she says, noting that some designers provide basic templates. Kagan wonders whether a website designer can refuse to provide that kind of basic template to same-sex couples. Waggoner says yes, since even basic wedding websites convey a message.
- Justice Sonia Sotomayor asks why a web designer would think of a wedding invitation or wedding website as their own speech. Isn’t a save-the-date card seen as coming from the couple?
- Sotomayor follows up by asking about a limiting line. Can web designers also refuse to work with interracial couples or disabled couples? Waggoner responds that the case is not about refusing to work with a protected class of people, but about the messages being conveyed by wedding websites specifically.
- Justice Amy Coney Barrett presents more hypothetical scenarios, questioning whether Smith would be willing to create a website for a heterosexual couple who wanted to share on their website that they met while married to other people and fell in love. Waggoner says she does not believe Smith would be willing to work on that website.
- Justice Ketanji Brown Jackson asks whether a business owner who sells special photos with Santa should be allowed to only offer that service to white children. Waggoner argues that the Santa photo likely does not represent speech in the same way that a wedding website represents speech.
- Sotomayor again asks if there’s really a difference between refusing to work with same-sex couples on wedding websites and refusing to work with same-sex couples at all. Waggoner notes that the wedding context matters and that Smith has worked with LGBTQ clients on other projects before. It’s important to not conflate service and speech, Waggoner says.
- Kagan questions whether the message really changes if you provide the exact same website to a heterosexual couple and a homosexual couple (only the names of the couple change.) Waggoner argues that the announcement of the wedding itself violates Smith’s free speech rights since she believe same-sex marriage is a false concept of marriage.
- Justice Brett Kavanaugh reflects on how to draw a line within the wedding industry to determine what types of services count as speech. Waggoner says she wouldn’t be in front of the court representing a caterer, for example, but likely would represent a custom wedding cake designer.
Questions for and comments from Eric Olson, Colorado’s solicitor general
- Olson argues that Colorado’s anti-discrimination law has only an incidental impact on personal expression. A ruling for Smith would create chaos in the context of public accommodation, allowing architects, photographers and others to refuse service to LGBTQ customers, religious customers, nonwhite customers by making claims about speech, he says.
- What this company seeks is total permission to turn away every same-sex couple seeking a wedding website, Olson tells Chief Justice John Roberts. That is status-based discrimination, he argues.
- Justice Samuel Alito questions whether a web design company would be allowed to have a tag on their business website explaining their views on marriage. After Olson says yes, Alito questions how that tag is different than refusing to work with same-sex couples. Olson says a company that does not publicize its stance on marriage is attempting to fly under the radar and not miss out on business from heterosexual couples who support LGBTQ marriage.
- Alito asks whether it’s fair to equate opposition to same-sex marriage with opposition to interracial marriage. Olson says it’s appropriate to do so under neutral and generally applicable laws.
- Sotomayor confirms with Olson that a ruling for Smith would represent the first time the Supreme Court allowed a commercial business serving the public to refuse to serve customers based on race, sex, religion or sexual orientation.
- Justice Neil Gorsuch says he’s torn over treating an expressive activity like designing a custom website the same as other business transactions, like the sale of a pre-made, basic cake.
- Gorsuch asks about the rights of a freelance writer who is considered a public accommodation. Can the state of Colorado force them to write press releases for a religious organization they don’t support. Olson says it all depends on the range of products the freelance writer is advertising. The writer is allowed to say, “I don’t ever work on faith-related press releases.”
Questions for and comments from Brian Fletcher, U.S. deputy solicitor general
- Fletcher begins by talking about the stakes of the case, noting that a win for Smith could force sweeping changes to civil rights laws across the country.
- Fletcher, at Jackson’s prompting, returns to the example of a photographer who won’t take pictures of nonwhite children with Santa. Fletcher says the U.S. government fears that such conduct would be allowed under a ruling in favor of Smith, since photography, like website design, is an expressive service.
- Barrett questions whether turning down a same-sex couple seeking a wedding website is status-based discrimination. Fletcher cites past rulings saying that status and conduct are deeply intertwined in LGBTQ rights cases.
- Fletcher tells Alito that he, like Olson, believes it’s permissible under Colorado law for a business to highlight its beliefs on marriage on its website, even if those beliefs are controversial.
- Fletcher clarifies that Smith would not violate the law if she refused to create any website that said something like “Gay marriages are great.” The problem is that her concern centers on the sexual orientation of customers, rather than on a message being conveyed, he argues.
- The government views 303 Creative as a status and message case, whereas Waggoner has presented the case as simply a message case, Fletcher says.
- Jackson again notes that some of Smith’s concern stems from her fear that her websites will imply support for same-sex marriage, without openly stating support for same-sex marriage. Fletcher said that, in past cases, implicit speech has not been treated the same as other forms of speech.
Final remarks from Waggoner on behalf of the web designer, Lorie Smith
- Waggoner has the final word at oral arguments. She says that Smith is not the one asking the Supreme Court to change the law. Instead, Colorado officials are, since they want the justices to reinterpret past speech rulings.
- She accuses the government of having a double standard on speech. It seems to say that you can refuse to express messages as a business owner unless the message is about same-sex marriage.
- The court should rule that website design is a form of speech and that Smith deserves to be protected from government coercion, Waggoner says.